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Low, Yan Feng --- "Legal Transplantation In Mediation: A Comparative Analysis Of Australian And Singaporean Mediation Laws" [2020] UNSWLawJlStuS 9; (2020) UNSWLJ Student Series No 20-09


LEGAL TRANSPLANTATION IN MEDIATION: A COMPARATIVE ANALYSIS OF AUSTRALIAN AND SINGAPOREAN MEDIATION LAWS

YAN FENG LOW

I INTRODUCTION

Mediation has seen a significant rise in usage in recent years, but when compared to the ‘traditional’ forms of dispute resolutions like litigation, it is an area that is still developing.[1] Alternative dispute resolution (ADR), or rather, as Mr. Henry put it, “appropriate dispute resolution” has grown from being a cost-effective alternative to litigation to a recognized dispute resolution option that has seen exponential use by the private sectors and the government.[2]

The recent decision by the United Nations Commission on International Trade Law (UNCITRAL) to hold the signing ceremony of the United Nations Convention on International Settlement Agreements Resulting From Mediation (henceforth referred to as the ‘Singapore Mediation Convention’) established Singapore as one of the leading countries for mediation. It places mediation into the ‘legal spotlight,’ where international laws on mediation would be on par with arbitration, whose equivalent, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), was signed on 7th June 1959. The attention that the Singapore Convention would bring to the country is one of the key reasons to review Singapore’s mediation system and see what are some ways it could be improved, by using Australia as an example.

Mediation in Singapore is primarily institutionalized, where it is carried out by the several courts dedicated to dispute resolution, such as the State Courts Centre for Dispute Resolution (SCCDR) and Family Resolution Chambers (FRC). The history of mediation can be traced back to Order 34A of the Rules of Court in Singapore in 1996, which gave the judiciary the power to order parties to attend pre-trial conferences to facilitate the closing of cases in a just, expeditious and economical manner.[3] This led to the establishment of the Singapore Mediation Centre in 1997, the creation of community mediation centers in 1998, and the Singapore International Mediation Institute in 2014.

Australia, too, has established itself as one of the leading countries in mediation, having instituted a large amount of case law relating to mediation.[4] Under the Civil Dispute Resolution Act 2011, applicants are obligated to take genuine steps to resolve disputes, i.e., using ADR to resolve disputes before commencing litigation.[5] It is important to note that although the Civil Disputes Resolution Act does place an obligation on the applicant to file a genuine steps statement, not doing so does not invalidate the proceedings, but it could influence awarding costs and “in exercising powers and performing functions.”[6]

This paper will conduct a comparative analysis between the mediation systems in Singapore and Australia and will provide recommendations that could be transplanted from one system to the other for the benefit of both. Singapore and Australia are ideal for legal transplantation due to the shared legal history from which both stem from the United Kingdom legal system (or common law). Ideally, through this method, the mediation systems of both countries could be further developed and improved. This paper will first discuss the problems with the Singapore mediation system and how it can be rectified through some of Australia’s system’s practices, followed by the shortcomings of Australia’s system and how it can be fixed with a portion of Singapore’s system.

II THE POSSIBILITY OF LEGAL TRANSPLANTATION

The first question that comes to mind when considering transplanting a portion of law from one country to the other is if it is feasible to do so. According to a hypothesis put forth by Prof. Schauer,

The desire of a country to be received or respected or esteemed by a particular group or community of nations bears a causal relationship to the degree to which that country will attempt to harmonize its laws with that of the group or community of nations, and also bears a causal relationship to the extent to which the country’s laws will eventually resemble the laws of that group or community of nations.[7]

Considering the signing of the Singapore Mediation Convention, it is would be beneficial for both Singapore and Australia, with their shared common law legal system, to harmonize their mediation systems. This effort would likely create a legal regime which would be receptive to other common law legal system countries, considering the effect the Singapore Mediation Convention would have on international mediation in regards to enforceability across jurisdictions.

For a legal transplant to succeed, it has to make sense in the context which is applied, and it has to be receptive to the legal culture where it is planted.[8] Australia and Singapore share the same legal history, coming from the United Kingdom’s common law system, and are very consistent with each other, aside from the fact that Australia uses a federal system of law, and Singapore adheres to the traditional common law system. One example of a successful transplantation of Australian Law to Singapore Law is the Torrens system of land title. The Torrens system of land title was first adopted in 1858 through the Real Property Act,[9] and was transplanted into Singapore’s Lands Titles Act in 1960, and continues to be in force till this day, where it was completely converted in 2001.[10] This proves that legal transplantation from Australia to Singapore and vice versa is feasible.

III ISSUES WITH SINGAPORE’S MEDIATION SYSTEM: CONSEQUENCES OF OPTING OUT OF ADR

Both Australia and Singapore have acts that actively encourages the use of ADR as a way to resolve disputes, but in both countries, it isn’t mandatory. The consequences of not attempting ADR before litigation, however, differ. Under the Rules of Court of Singapore, Order 58, Rule 5C, it states that “The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account... the parties’ conduct in relation to any attempt at resolving the cause or matter by mediation or any other means of dispute resolution.”[11] Whereas under the Civil Dispute Resolution Act in Australia, under part 3 section 11, the courts “may have regard to genuine steps requirements in exercising powers and performing functions,”[12] and under section 12, when exercising a discretion to award cost, the ruling body may taking into account several things:

(a) whether a person who was required to file a genuine steps statement under Part 2 in the proceedings filed such a statement; and

(b) whether such a person took genuine steps to resolve the dispute.

(2) In exercising a discretion to award costs in a civil proceeding in an eligible court, the court, Judge, Federal Magistrate or other person exercising the discretion may take account of any failure by a lawyer to comply with the duty imposed by section 9.

(3) If a lawyer is ordered to bear costs personally because of a failure to comply with section 9, the lawyer must not recover the costs from the lawyer’s client.[13]

There are several differences in the consequences of not attempting ADR before litigation between Australia and Singapore. Australia’s legislation allows a broader interpretation to the power which the court can exercise when a person does not file a genuine steps statement. This includes holding the lawyer accountable should they fail to advise their client about the requirement to file a genuine steps statement.[14]

The consequences of failing to meet these requirements were first manifested in the case Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorney. In this case, Justice Reeves took into account that there was no genuine steps statement provided, nor did the lawyers advise their client(s) to do so.[15] Hence, he urged the lawyers to be joined as parties to the proceedings on the question of costs and provide a copy of the reasons to their clients to seek independent legal advice on the question of the cost of the proceedings.[16] He also reported the lawyers to the Queensland Law Society, the Bar Association of Queensland, and the Legal Services Commission to take appropriate actions against the two lawyers.[17] This case established that even though the genuine steps statements does not invalidate an application to go forward with proceedings, the courts will take into account the compliance of the parties to the Civil Dispute Resolution Act, and if needed, will include personal cost orders and reports on professional conduct if necessary.

However, Singapore does not have a similar provision extending consequences to lawyers. Consequences, under Singapore law, applies only to the parties involved. It is the job of the lawyer to interpret the law for their client, and to fail to disclose pertinent information, like the necessity to attempt ADR before litigation, goes against the ethical tenets that lawyers are held against. [18] It is essential to highlight that, using the case cited above as an example, should there be no clause highlighting the liability of lawyers on their failure to perform their duty of informing their client of the need of providing a genuine steps statement, the consequences would fall on the shoulders of the parties, which would be unjust. Hence, it would be prudent for Singapore to include a clause that outlines the duties of the lawyer to inform their clients that not conducting ADR before proceedings could influence the issue of costs.

IV ISSUES WITH SINGAPORE’S MEDIATION SYSTEM: THE LACK OF LEGISLATION REQUIRING GOOD FAITH IN MEDIATION

Unlike litigation, for mediation to succeed, the parties must come to the table and be willing to negotiate in good faith. Mediations are based on both parties mutually cooperating to reach an end goal, usually an agreement. There are no rules of court, or procedures which forces the parties to provide evidence or information. Thus, an approach to mediation in good faith is necessary. Should a party go into mediation in bad faith, it could lead to an abuse of the mediation process. Such abuse includes using mediation as a ‘fishing expedition,’ to gain information to use against the other party in court, or as a method to wear down the party that has less finances.[19]

In Australia, there are several legislations and case laws which outlines the necessity of participating in mediation in good faith, to not abuse the mediation process. Under the Civil Procedure Act 2005 (NSW), it states that “it is the duty of each party to proceedings that have been referred for mediation to participate, in good faith, in the mediation.”[20] As mentioned above, the Civil Dispute Resolution Act 2011 outlines the need for the applicant to demonstrate that they have made a genuine attempt to resolve the dispute, where ‘genuine steps to resolve a dispute’ is defined as “steps taken by the person in relation to the dispute constitute a sincere and genuine attempt to resolve the dispute, having regard to the person’s circumstances and the nature and circumstances of the dispute.”[21]

The definition of good faith was further clarified in Aiton Australia Pty Ltd v Transfield Pty Ltd, where Justice Einstein defined good faith as:

(1) to undertake to subject oneself to the process of negotiation or mediation (which must be sufficiently precisely defined by the agreement to be certain and hence enforceable);

(2) to undertake in subjecting oneself to that process, to have an open mind in the sense of:

(a) a willingness to consider such options for the resolution of the dispute as may be propounded by the opposing party or by the mediator, as appropriate;

(b) a willingness to give consideration to putting forward options for the resolution of the dispute.[22]

Contrary to Australia, Singapore has no legislation enforcing the need to negotiate in good faith in mediations. However, should the contract contain a provision to negotiate in good faith, the courts held that it will be legally binding. This was first mentioned in the HSBC Institutional Trust Services (Singapore) Ltd (trustee of Starhill Global Real Estate Investment Trust) v Toshin Development Singapore Pte Ltd case. The Court of Appeal stated that since enforcing “friendly negotiations” and “confer in good faith” clauses are in line with Singapore’s cultural values and in the wider public interest in Singapore to promote this method of resolving differences, the clause of “negotiating in good faith” will be upheld.[23] The Court of Appeal referred to NSWSC’s decision in Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) to outline the parties’ duty to negotiate in good faith.[24]

This case has major implications for commercial contracts where clauses of good faith negotiations are standard and confirm the legal consequences of breaking such clauses. However, I believe that this should be taken one step further and have legislation should be codified, stating the need for good faith participation in mediation should be mandatory, per the reasons stated above.

It can be argued that there is no need for a requirement to participate in good faith. Chan put forth the argument that due to the lack of a clear legal status on “good faith,” new exceptions would have to be made should the courts have to decide if the confidentiality of mediation (whose legal status in Singapore is unclear too), must be breached.[25] Furthermore, she emphasized that requiring parties to participate in good faith could influence legitimate conduct by forcing parties to behave in a certain manner and could influence decisions, which brings into question the sanctity of mediation, which is impartiality.[26] She described how it would be possible for parties to perceive questions posed by the mediator to reality-test as a “hint” for them to change their decisions, and by not being able to participate in discussions freely could hinder the efficiency of mediations.[27]

Both problems could be addressed by having a clear definition of what “good faith” means. My recommendation would be to adopt the “good faith bargaining requirements” set out in Australia’s Fair Work Act, and transplant it into the Singapore Mediation Act, which contains no such definition for “good faith.” The Fair Work Act set out good faith bargaining requirements as followed:

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.[28]

My example of what a “participation in good faith” requirement would look like, adapted from the Fair Work Act, would be as followed:

(1) The following are the good faith participation requirements that all parties in a proposed mediation must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals and settlements made by the other party for the agreement in a timely manner;

(d) giving genuine consideration to the proposals and settlements of other parties for the agreement, and giving reasons for the party’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines the negotiations of a mediation settlement, including refusing to offer or consider options;

(f) prepared and being open to negotiating with the other party for a settlement. This includes having the authority to state and carry out a settlement.

For mediation to succeed, parties have to be willing to approach it in good faith, especially since the courts in Singapore strongly suggest that parties have to attempt ADR before commencing litigation.[29] Under these circumstances, it is essential that parties attend these mediations with a cooperative attitude. Not only would having a definition of what “good faith” be helpful in meeting this objective, but it also sets out clear standards for both involved parties and lawyers to follow. Ultimately, this change would hopefully alleviate the possibility of bad faith mediations in a strongly adversarial legal system.

V ISSUES WITH SINGAPORE’S MEDIATION SYSTEM: LACK OF GUIDELINES OR STANDARDS FOR ACCREDITED MEDIATORS IN SINGAPORE

In Australia, mediators accredited by the Mediator Standards Board (MSB) are bound by the National Mediator Accreditation Standards (NMAS).[30] The practice standards outline the skills and competency that is required of an NMAS certified mediator and sets out the expectation of what the mediator is supposed to do in mediation. The practice standards inform the parties participating in a mediation on what can be expected from their mediator and gives confidence to the mediation system in Australia as they can understand the quality of service that they can expect from an NMAS certified mediator. These standards also seek to keep mediators accountable. Skills that are crucial for mediation are mentioned in the standards, like the “ability to manage high emotion, power imbalances, impasses and violence” and the knowledge to conduct “reality-testing proposed outcomes in light of participants’ interests, issues, underlying needs, and long-term viability.” [31]

The NMAS also sets out approval standards, which sets out the qualification an NMAS accredited mediator needs, including the training they need to undertake, their experience as a mediator, and their personal qualities. This allows the MSB to keep the high quality of NMAS mediators consistent.[32]

On the other hand, there are two forms of accreditation systems for mediators in Singapore, one by the Singapore Mediation Centre (SMC) to be an SMC Accredited Mediator, and the other by the Singapore International Mediation Institute (SIMI). To be an SMC Accredited Mediator, you have to complete the Mediation Skills Assessment.[33] There are no other standards or guidelines that have been published by the SMC as to the standards of SMC Accredited Mediators. To be accredited as a SIMI Certified Mediator, you have to undergo the SIMI Credentialing Scheme, which outlines the training programs that meditators need to attend, the mediation experience required, and obtain feedback from their mediations.[34] As with the SMC accreditation system, there are no guidelines provided which outlines the standards of SIMI accredited mediators.

Although both SMC and SIMI have published their approval standards, they lack a practice standard similar to NMAS, which sets out the skills that are expected of an accredited mediator. One of the key reasons to have a practice standard is to hold mediators accountable to a certain skill level and to allow parties to understand what to expect from these mediators. My recommendation would be to mimic the practice standards of the NMAS, as it is a complete document, from outlining the expectations of what a preliminary conference should look like, and what the mediator should inform the parties, to outlining the standards for charging for services. [35]

VI ISSUES WITH AUSTRALIA’S MEDIATION SYSTEM: THE LACK OF LEGISLATION ENFORCING THE BINDING MEDIATION SETTLEMENTS

Under Singapore’s Mediation Act 2017, the courts permit the recording of a mediated settlement agreement as an order of the court.[36] This provides the certainty that the mediated agreement to be enforceable as a court order if there has been a breach of the agreement’s terms. It essentially converts the agreement into a court order and all the authority that the latter brings. To safeguard against the exploit of this clause, the Mediation Act outlines the limitations to this clause, namely, it is only available to designated Mediation Service Providers (as of 29/3/2019, include the Singapore Mediations Centre, the WIPO Mediation and Arbitration Centre, the Tripartite Alliance of Dispute Resolutions, the Singapore International Mediation Centre and mediations conducted by a SIMI certified mediator), and if the agreements are made under duress, which invalidates it.[37] This clause is reflected in the signing of the Singapore Convention, where parties to the convention would be obligated to enforce an internationally mediated settlement agreement in accordance with the country’s rules of procedure and under the conditions laid down in the Singapore Convention.[38]

Although the Australian legislation does not contain a provision relating to the enforcement of binding settlements, it does set out, in case law, what settlement terms were legally binding. This is described in detail in Masters v Cameron and Sinclair, Scott & Co v Naughton. In Masters v Cameron, the court outlined three cases:

1. One in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect.

2. [One] in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made the performance of one or more of the terms conditional upon the execution of a formal document.

3. One in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.[39]

Under Sinclair, Scott & Co v Naughton, a binding settlement is defined as:

... one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms.[40]

In the first two cases listed in Masters v Cameron, regardless if there was a formal contract drawn up, the terms of the bargain are binding, and the parties to the bargain are legally obliged to carry out the terms listed. The second cases require a further action by the parties in drafting a formal contract to execute the terms without changing the original bargain. The third case differs in the fact that the terms are not binding at all and will not be binding until the drafting of an execution of a formal contract. This would often be done to accommodate changes to the existing non-binding bargains before drafting a legally binding contract.

While Masters v Cameron and Sinclair, Scott & Co v Naughton clarifies what constitutes a binding contract, it is different from a court-enforced contract, where breaking the terms of the contract could result in consequences similar to disobeying a court order, such as being held in contempt of court.[41]

By incorporating Singapore’s provision, which specifies that a mediation settlement agreement is enforceable, there would be more confidence in the mediation system since the parties would be confident in the binding nature of the mediation settlement. My recommendation would be an amendment to the Civil Dispute Resolution Act 2011, under Part 3 – Powers of court, where an additional section which would be modeled after section 12 of Singapore’s Mediation Act 2017, with several modifications to suit Australia’s context. This would include changes to subsection 3a of section 12, where it states that “(a) the mediation is administered by a designated mediation service provider or conducted by a certified mediator.”[42] There would be an additional clause that defines what a “designated mediation service provider” be, such as a mediator that is certified under the National Mediator Accreditation System (NMAS) or a court provided mediator.

VII HYBRID DISPUTE RESOLUTION ON THE INTERNATIONAL LEVEL

The adoption of mediation as part of domestic legislation has seen a rise in recent years, notably by China, with the enaction of the 2012 amendment to China’s Civil Procedure Law, which promotes the use of mediation as the first form of mediation if applicable in a civil dispute.[43] Despite the certainty provided by mediation legislation, the use of mediation in the international dispute resolution process has seen scant use on the international level compared to international arbitration.[44] This was reflected in a survey conducted by the Singapore Academy of Law in 2016, where it found that seventy-one percent of law practitioners preferred to use arbitration, compared to just five percent for mediation, with enforceability, confidentiality, and fairness as leading factors for choosing arbitration.[45]

Unlike mediation, arbitration provides the finality of a binding settlement at its conclusion, whereas mediation is suited for discovering underlying issues, and promoting integrative agreements.[46] Hybrid dispute resolution exploits the strengths of both procedures, where the components of both mediation and arbitration are used.[47] There are two main forms of hybrid procedures: arbitration-mediation (or arb-med) and mediation-arbitration (or med-arb). Arb-med involves a third party to play both the role of mediator and arbitrator. During the arbitration phase of the procedure, at its conclusion, the third party will make a decision and seal it in an envelope without informing either party to the dispute of the results. This is followed by a mediation phase. If the parties do not reach a mutually accepted agreement by the end of the mediation phase, the third party will reveal the binding decision to the parties. In med-arb, the mediation commences first, and only if the mediation fails to produce a mutually accepted agreement, then the arbitration phase will commence, and the third party will impose a binding settlement on the parties.

With the implementation of the Singapore Mediation Convention, I believe there would be a rise in hybrid dispute resolution procedures on the international level. The widespread use of arbitration in international disputes was a result of the binding settlement that it provides (which is facilitated by the New York Convention). With international mediation settlements being enforceable, provided that it meets the criteria of the Convention, it opens up the possibility of using arb-med or med-arb procedures in international disputes. A study conducted by Queen Mary University of London in collaboration with White & Case on international arbitration showed that the primary concern users have on international arbitration is the growing time and costs of arbitration.[48] The same survey showed that the interviewees recommended mediation to reduce the time and costs that come with arbitration, and that sixty percent of interviewees felt that counsel should encourage settlement, including the use of mediation during an arbitration.[49]

There is a risk, however, where conducting a hybrid process could endanger the dispute resolution process. One example would be the Keeneye case[50], where the arbitral tribunal, conducting under the rules of the Xi’an Arbitration Commission, did a med-arb process. In the Keeneye case, the parties agreed that the arbitrators should first attempt to resolve the dispute as mediators before deciding on the merits as arbitrators.[51] However, the mediation settlement was ultimately rejected, and the arbitrators ruled on the case, favoring the claimant.[52] The respondents appealed the decision before the Xi’an Intermediate Court but were dismissed, and the claimants sought to have the arbitral award enforced in Hong Kong.[53] However, the Hong Kong Court of First Instance refused to recognize and enforce the arbitral award on the basis that the engagement of the arbitral tribunal as a mediator raised issues on public policy which tainted the judgment due to bias.[54] Ultimately, the decision was overturned by the Hong Kong Court of Appeals because the party resisting enforcement did not object to mediation, which constituted an implicit waiver.[55] Nevertheless, this shows that due diligence must be exercised to ensure the dispute resolution process is not placed at risk.

VIII CONCLUSION

Mediation is a field that is still growing, and faces its own set of challenges, especially when it exists in countries where litigation and the adversarial system is dominant. In an environment such as this, parties and lawyers might not be inclined towards going an alternative dispute resolution route, especially since the status of complex issues in mediation can be ambiguous, such as confidentiality in mediation, or the enforcement of mediation settlements. To tackle some of these challenges, the recommendations I listed above would adequately address some of these issues.

By having a definition of what ‘good faith’ means, the parties can have a clear understanding of what is expected of them when they enter mediation. By having a ‘good faith’ requirement, mediation would be safer for both parties as it protects them from acts of bad faith, like ‘fishing expeditions,’ where lawyers exploit the mediation process to gain information. Furthermore, the ‘good faith’ requirements allow for a smooth mediation process, which increases efficiency and satisfaction rates, as stalling tactics like refusing to consider options are not allowed. Australia’s Fair Work Act provides a good working definition of what a ‘good faith’ bargaining looks like, but it would have to be adapted to suit Singapore’s legal system and in the context of mediation.

Furthermore, there is a need to institute a clause that holds lawyers accountable to their duties to inform the clients of opting out of ADR. Lawyers are held to ethical standards when called to the bar (depending on their country), and it is essential that the consequences of failing to uphold those tenets be codified to hold the lawyers accountable to their clients and to ensure they execute their professional duties accordingly.

With the signing of the Singapore Convention, the mediation system of Singapore would undoubtedly come under scrutiny, and it would be prudent for Singapore to look inwards to see if there could be improvements done. Singapore and Australia share a common legal history and would be ideal for legal transplantation. Through this method, both countries would benefit from the process and could work towards developing a common framework that would complement the upcoming Singapore Convention.

IX BILIOGRAPHY

A Articles/Books/Reports

Alexander, Nadja, International Comparative Mediation: Legal Perspectives (Global Trends in Dispute Resolution) (Kluwer Law International, 2011)

Chua, Eunice, ‘The Singapore Convention on Mediation—A Brighter Future for Asian Dispute Resolution’ (2019) 9 Asian Journal of International Law 195

Del Duca, Louis F and Levasseur, Alain A, ‘Impact of Legal Culture and Legal Transplants on the Evolution of the U.S. Legal System’ (2010) 58 The American Journal of Comparative Law 1

General Assembly of the United Nations, Report of the United Nations Commission on International Trade Law, UN GAOR, 73rd sess, Supp No 17, UN Doc A/73/17 (31 July 2018)

Henry, James. F, ‘Some Reflections on ADR’ (2000) 1 Journal of Dispute Resolution 63

Mourre, Alexis, ‘The Proper Use of Med-Arb in the Resolution of International Disputes’ (2016) Asian Dispute Review 94

Ross, William H. and Conlon, Donald E., ‘Hybrid Forms of Third Party Dispute Resolution: Theoretical Implications of Combining Mediation and Arbitration’ (2019) 25(2) Academy of Management Review 416,

Schauer, Frederick, ‘The Politics and Incentives of Legal Transplantation’ (Working Paper No. 44, Centre for International Development at Harvard University, April 2000) 11.

B Cases

Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996; (1999) 153 FLR 236

Gao Haiyan And Another v Keeneye Holdings LTD And Another [2012] 1 HKLRD 627

HSBC Institutional Trust Services (Singapore) Ltd (trustee of Starhill Global Real Estate Investment Trust) v Toshin Development Singapore Pte Ltd [2012] SGCA 48

Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353

O’Shane v Channel Seven Sydney Pty Ltd [2005] NSWSC 1358.

Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34; (1929) 43 CLR 310

Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (2012) FCA 282

C Legislation

Civil Dispute Resolution Act 2011 (Cth)

Civil Procedure Act 2005 No 28 (NSW)

Fair Work Act 2009 (Cth)

Lands Title Act (Singapore)

Mediation Act 2017 (Singapore)

Real Property Act 1868 (VIC)

Supreme Court of Judicature Act (Singapore)

Civil Procedure Law of the People's Republic of China (Republic of China)

D Other

Law Council of Australia , Australian Solicitors Conduct Rules (2015) < https://www.lawcouncil.asn.au/files/web-pdf/Aus_Solicitors_Conduct_Rules.pdf>

Mediator Standards Board (MSB), National Mediator Accreditation Standards: Practice Standards (2015) < https://msb.org.au/themes/msb/assets/documents/national-mediator-accreditation-system-2015.pdf>

Singapore International Mediation Instutute, About the SIMI Credentialing Scheme (2019) <http://www.simi.org.sg/What-We-Offer/Mediators/SIMI-Credentialing-Scheme>

Singapore Mediation Centre, Workshops (2019) <http://www.mediation.com.sg/workshops/mediation-skills-assessment/>


[1] James F Henry, ‘Some Reflections on ADR’ (2000) 1 Journal of Dispute Resolution 63, 63.

[2] Ibid.

[3] Supreme Court of Judicature Act (Singapore, cap 322, 2007 rev ed) s 80 O 34A.

[4] Nadja Alexander, International Comparative Mediation: Legal Perspectives (Global Trends in Dispute Resolution) (Kluwer Law International, 2011) ch 1.

[5] Civil Dispute Resolution Act 2011 (Cth).

[6] Ibid ss 10-12.

[7] Frederick Schauer, ‘The Politics and Incentives of Legal Transplantation’ (Working Paper No. 44, Centre for International Development at Harvard University, April 2000) 11.

[8] Louis F. Del Duca and Alain A. Levasseur, ‘Impact of Legal Culture and Legal Transplants on the Evolution of the U.S. Legal System’ (2010) 58 The American Journal of Comparative Law 1, 1.

[9] Real Property Act 1868 (VIC).

[10] Lands Title Act (Singapore, cap 157, 2004 rev ed).

[11] Supreme Court of Judicature Act (Singapore, cap 322, 2014 rev ed) s 80 O 58 s5C.

[12] Civil Dispute Resolution Act 2011 (Cth) pt 3 s 11.

[13] Ibid s 12.

[14] Civil Dispute Resolution Act 2011 (Cth) pt 3 s 9.

[15] Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (2012) FCA 282, [46].

[16] Ibid.

[17] Ibid.

[18] Law Council of Australia , Australian Solicitors Conduct Rules (2015) < https://www.lawcouncil.asn.au/files/web-pdf/Aus_Solicitors_Conduct_Rules.pdf> p 6 s 7.

[19] Chan Min Hui, ‘Good Faith Participation in Mediation’ in Joel Lee and Marcus Lim (eds), Contemporary Issues in Mediation (World Scientific, 2016) 123.

[20] Civil Procedure Act 2005 No 28 (NSW) pt 4 s 27.

[21] Civil Dispute Resolution Act 2011 (Cth) pt 1 s 41A.

[22] Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996; (1999) 153 FLR 236, [156].

[23] HSBC Institutional Trust Services (Singapore) Ltd (trustee of Starhill Global Real Estate Investment Trust) v Toshin Development Singapore Pte Ltd [2012] SGCA 48, [40].

[24] Ibid. [46].

[25] Chan, above n 16, 126.

[26] Ibid, 127-128.

[27] Ibid, 128.

[28] Fair Work Act 2009 (Cth) s 228.

[29] Supreme Court of Judicature Act (Singapore, cap 322, 2014 rev ed) s 80 O 58 s5C

[30] Mediator Standards Board (MSB), National Mediator Accreditation Standards: Practice Standards (2015) < https://msb.org.au/themes/msb/assets/documents/national-mediator-accreditation-system-2015.pdf>.

[31] Ibid, p 3 s 10.1 sub-s bviii.

[32] Ibid, p 2.

[33] Singapore Mediation Centre, Workshops (2019) <http://www.mediation.com.sg/workshops/mediation-skills-assessment/>

[34] Singapore International Mediation Instutute, About the SIMI Credentialing Scheme (2019) <http://www.simi.org.sg/What-We-Offer/Mediators/SIMI-Credentialing-Scheme>

[35] MSB, above n 27.

[36] Mediation Act 2017 (Singapore) s 12.

[37] Ibid.

[38] Report of the United Nations Commission on International Trade Law, UN GAOR, 73rd sess, Supp No 17, UN Doc A/73/17 (31 July 2018) Annex 1, art 3 s 1.

[39] Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, 360.

[40] Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34; (1929) 43 CLR 310, 317.

[41] O’Shane v Channel Seven Sydney Pty Ltd [2005] NSWSC 1358.

[42] Mediation Act 2017 (Singapore) s 12 sub-s 3a.

[43] «中华人民共和国民事诉讼法» [Civil Procedure Law of the People's Republic of China] (Republic of China), art 122.

[44] Eunice Chua, ‘The Singapore Convention on Mediation—A Brighter Future for Asian Dispute Resolution’ (2019) 9 Asian Journal of International Law 195, 204.

[45] Ibid.

[46] William H. Ross and Donald E. Conlon, ‘Hybrid Forms of Third Party Dispute Resolution: Theoretical Implications of Combining Mediation and Arbitration’ (2019) 25(2) Academy of Management Review 416, 417.

[47] Ibid.

[48] Alexis Mourre, ‘The Proper Use of Med-Arb in the Resolution of International Disputes’ (2016) Asian Dispute Review 94, 94.

[49] Ibid.

[50] Gao Haiyan And Another v Keeneye Holdings LTD And Another [2012] 1 HKLRD 627.

[51] Ibid. 95.

[52] Ibid.

[53] Ibid.

[54] Ibid.

[55] Ibid. 96.


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